Germany: no State liability for missed flight after lengthy security check

The plaintiff and his familiy were booked on a flight from Germany to a destination outside the Schengen area. The flight was scheduled to depart at 04:55 and the boarding time was announced for 04:30. The plaintiff and his family arrived at the security check shortly before 04:00. The officer detected a suspiciuos object in the hand luggage of the plaintiff's wife. He informed his supervisor who ordered the hand bag to be screened several times. In addition, the plaintiff's wife was checked for traces of explosive materials. The procedure showed no results confirming the suspicion and the familiy was allowed to pass the security control at 04:40. At that time, the boarding had already closed and so they missed their flight.

The plaintiff filed a law suit against the state, requesting compensation for the costs of a substitute flight. While the first instance court (LG Frankfurt/Main) granted the claim, the appelate court (OLG Frankfurt/Main) reversed the judgement and dismissed the claim. In a ruling of Dec 14, 2017, the German Supreme Court (BGH) came to the conclusion that an appeal of the plaintiff had no realisitc chance of success: lawful acts by state authorities could only give raise to liabilty if the person concerned suffered damages which must be regarded as a disproprtionate burden. Security checks could always take some time and it therefore was each air passenger's obligation to take into account the extra time required. As the plaintiff and his family only had shown up at the security check less than one hour before departure and only half an hour before boarding time they had signifcantly contributed to the risk of missing the flight and therefore were not entitled to compensation.